Umar & Friends: 5 years of jail without bail

MORE than five years after student activists Umar Khalid, Sharjeel Imam, Gulfisha Fatima, Meeran Haider and some others were arrested under the Unlawful Activities (Prevention) Act 1967 in the larger conspiracy case linked to the 2020 north-east Delhi riots, they continue to languish in jail.

The Supreme Court on Friday deferred the hearing on their petitions, challenging the Delhi High Court’s September 2 order refusing them bail, to September 19.

What did Delhi High Court say

While denying bail to 10 accused, including the four activists, the Delhi High Court said “conspiratorial” violence under the garb of demonstrations or protests by citizens couldn’t be allowed and that they didn’t deserve parity with co-accused Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, who were earlier granted bail. It also dismissed their argument of delay and prolonged incarceration, saying “…the present case involves complex issues, and the trial is progressing at a natural pace”.

In 2021, while granting bail to Tanha, Kalita and Narwal in the same case, a different Bench of the High Court ruled that right to protest is a fundamental right that can’t be termed a “terrorist act”. The Supreme Court took exception to the High Court reading down the UAPA while granting bail, saying the order can’t be treated as a precedent.

Arrest of accused

Umar Khalid was arrested on September 13, 2020, while Gulfisha Fatima was arrested on April 9, 2020. Sharjeel Imam was arrested on January 28, 2020 and Meeran Haider was arrested on April 1, 2020. They have been in jail for more than five years. In June 2020, accused Safoora Zargar was granted bail on account of her pregnancy.

A former research scholar at JNU, Umar came into the limelight after he was booked along with other students for allegedly raising inflammatory slogans in 2016 on the campus. Student activists allege that Umar and others are being deliberately targeted while those responsible for instigating the 2020 violence have walked free.

Charges against accused

The Delhi Police filed a chargesheet in September 2020. Thereafter, four supplementary chargesheets have been filed. The accused are facing charges of criminal conspiracy, sedition, promoting enmity between various groups, making statements conducing to public mischief under the IPC and Section 13 of the stringent anti-terror law — UAPA — for allegedly questioning the sovereignty, unity, or territorial integrity of India and causing disaffection against it.

The trial is expected to take time as around 900 people have been listed as witnesses.

They are accused of being the “masterminds” of the “larger conspiracy” behind the February 2020 Delhi riots during the visit of the then US President Donald Trump that claimed 53 lives and left more than 700 injured. The violence had erupted during the protests against the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC).

Why bail under UAPA is difficult

For a person accused under the UAPA, getting bail is a difficult proposition for three reasons. Firstly, Section 43D(5) of the UAPA says that notwithstanding anything contained in the CrPC (replaced by the Bharatiya Nagarik Suraksha Sanhita or BNSS), no person accused of an offence punishable under Chapters IV and VI of the UAPA shall be released on bail or on his own bond, unless the public prosecutor has been given an opportunity of being heard on the bail application.

Secondly, the proviso to Section 43D(5) says that such accused person shall not be released on bail or on his own bond, if the court on a perusal of the case diary or the final report (chargesheet) is of the opinion that there are reasonable grounds to believe that the accusation against such person is prima facie true.

Thirdly, Sub-Section (6) of Section 43D further clarifies that the restrictions on grant of bail specified in Sub-Section (5) would be in addition to the restrictions under the CrPC or any other law for the time being in force on granting of bail.

Reasons for delay

The bail pleas were being heard by a Delhi High Court Bench led by Justice Siddharth Mridul, which reserved the judgment on March 6, 2023, but in July 2023, some of the cases were reopened to hear additional issues. In October 2023, he was appointed as the Chief Justice of the Manipur High Court. Thereafter, the bail pleas were heard by a Bench led by Justice Suresh Kait and judgment was reserved in some cases. In August 2024, other bail pleas were heard by a new Bench for several months but no verdict was delivered. The hearings had to be conducted again as Justice Kait was appointed as the Chief Justice of the Madhya Pradesh High Court in September 2024.

In some of the cases, the accused had sought adjournments and had then chosen to withdraw their pleas from the Supreme Court.

Criticism of HC verdict

Terming the denial of bail to the accused in this case as “travesty of justice”, activist-lawyer Prashant Bhushan told The Tribune that the order went against the principle of ‘bail is rule and jail exception’.

“There is no credible evidence against the accused, particularly Umar Khalid, except the police statements of protected witnesses. Long incarceration, coupled with no prospect of the trial being concluded in the near future, should be sufficient to grant them bail,” Bhushan said.